Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/38

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Thomas, J., dissenting

firmed that "'racial balancing'" by state actors is "'patently unconstitutional,'" even when it supposedly springs from good intentions. Fisher v. University of Tex. at Austin, 570 U. S. ___, ___ (2013) (slip op., at 9). And if that "racial balancing" is achieved through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits—then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color. A problem with doing so should be obvious: “Government action that classifies individuals on the basis of race is inherently suspect." Schuette v. BAMN, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 12); accord, id., at ___ (Scalia, J., concurring in judgment) (slip op., at 9). That is no less true when judges are the ones doing the classifying. See id., at ___ (plurality opinion) (slip op., at 12); id., at ___ (Scalia, J., concurring in judgment) (slip op., at 9). Disparate-impact liability is thus a rule without a reason, or at least without a legitimate one.


The decision in Griggs was bad enough, but this Court's subsequent decisions have allowed it to move to other areas of the law. In Smith, for example, a plurality of this Court relied on Griggs to include disparate-impact liability in the ADEA. See 544 U. S., at 236. As both I and the author of today’s majority opinion recognized at the time, that decision was as incorrect as it was regrettable. See id., at 248–249 (O'Connor, J., joined by Kennedy and Thomas, JJ., concurring in judgment). Because we knew that Congress did not create disparate-impact liability under Title VII, we explained that "there [wa]s no reason to suppose that Congress in 1967"—four years before Griggs—"could have foreseen the interpretation of Title VII that was to come." Smith, supra, at 260 (opinion of O’Connor, J.). It made little sense to repeat Griggs' error